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[2018] ZAGPJHC 693
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Jonkers v Minister of Police and Another (10702/2016) [2018] ZAGPJHC 693 (20 December 2018)
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Certain
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO:
10702/2016
In
the matter between:
WILLIAM
JONKERS
Plaintiff
and
THE
MINISTER OF
POLICE
First
Defendant
THE
NATIONAL DIRECTOR OF PUBLIC
PROSECUTION
Second
Defendant
J
U D G M E N T
MAIER-FRAWLEY
AJ:
Introduction
1.
The
plaintiff instituted an action for damages against the Minister of
Police (first defendant) and the Director of Public Prosecutions
(second defendant)
[1]
for
unlawful arrest and detention and malicious prosecution.
2.
By agreement between
the parties, the trial was confined to the merits of the claim, with
the question of quantum standing over
for later determination, if
necessary.
3.
On 8 January 2015 the
plaintiff was arrested by a police officer, without warrant, whilst
he was at the Johannesburg Family Court.
It was not in dispute that
the plaintiff had been involved in a custody dispute with the mother
of his child, Ms. Lorna Bemand,
at the time. The fact that Ms Bemand
had on 9 August 2014 laid a complaint of assault against the
plaintiff was also not in dispute.
4.
The
plaintiff’s pleaded case is that he was arrested for domestic
violence by Detective Segodi,
[2]
placed in handcuffs, made to walk in the streets from the Family
Court to the Johannesburg Central Magistrate Court, where he was
detained in the court cells until his first appearance in court on 8
January 2015 at approximately 15h00 that same day.
[3]
Pursuant to the first appearance in court, he was remanded into
custody and the matter was postponed to the 19
th
January 2015. The State opposed the grant of bail on 8 January 2015,
inter
alia,
on the basis of an alleged murder charge that was pending against the
plaintiff in Cape Town.
5.
The plaintiff avers in
paragraphs 12 to 16 of the particulars of claim that
as
a result of the alleged pending murder charge
,
he was wrongfully and unlawfully detained at the Johannesburg
Correctional Centre until the 19
th
January 2015. When he appeared in court on that occasion, he was
‘informed that he was mistaken for a different Mr. Jonkers,
who
was wanted for murder in Cape Town’. He was released ‘on
warning with certain bail conditions’,
inter
alia,
requiring him
to report to his local police station on a weekly basis. The matter
was further postponed to 24 March 2015, on which
date the State
withdrew all charges against him.
6.
The
arrest without warrant and subsequent detention of the plaintiff is
not disputed. What is disputed is the alleged unlawfulness
thereof.
The defendants’ pleaded case, as amended, is that the arrest
and detention was lawful, reasonable and justified
in terms of
section 40(1)(b) alternatively, section 40(1)(q)
[4]
or further alternatively, section 50 of the Criminal procedure Act 51
of 1977 (CPA). Moreover, the defendants pleaded that the
date of the
plaintiff’s first appearance in court was 9 January 2015 and
not 8 January 2015, as alleged by the plaintiff.
7.
The
plaintiff’s claim for malicious prosecution (which I might
point out was rather ineptly pleaded)
[5]
is denied in the defendants’ plea.
[6]
Inter
alia,
the defendant avers that there were, and still are, reasonable and
probable grounds for prosecuting the plaintiff. The defendants
admit
that the case was withdrawn against the plaintiff on 24 March 2015
but pleads that the matter was mediated upon on such occasion,
resulting in the complainant filing a withdrawal statement wherein
she requested that the charges against the plaintiff be withdrawn
because the plaintiff had apologised, which apology she had accepted,
and because the plaintiff had undertaken not to assault her
ever
again. Thus, it was only by virtue of the complainant’s
unwillingness to proceed that the case against the plaintiff
was
withdrawn.
8.
It was common cause
between the parties that members of the SAPS and prosecutors who
dealt with the matter were acting in the course
and scope of their
employment with the first and second respondents, who are sought to
be held vicariously liable for the wrongful
and/or unlawful acts of
their employees.
9.
It
is trite that police bear the onus to justify an arrest and detention
up to an arrestee’s first appearance in court.
[7]
Justification for the detention after an arrest until a first
appearance in court continues to rest on the police.
[8]
Thereafter, the authority to detain the suspect further is then
within the discretion of the court.
[9]
The parties were in agreement that the plaintiff bore the onus in
respect of the claim for malicious prosecution.
[10]
It was presumably for this reason that the plaintiff assumed the duty
to begin at trial.
Evidence
at trial
10.
Only
the plaintiff testified in support of his case. The defendants called
three witnesses in support of their case: the arresting
officer
(Sergeant Segodi); the public prosecutor who mediated in the matter
(Mr. Staffa); and the control prosecutor who took the
decision to
prosecute the plaintiff on charges of assault GBH
[11]
and who gave directed that bail should be opposed (Ms. Bianca
Heunis).
Plaintiff’s
evidence
11.
The plaintiff testified
that he had attended a custody case at the Family Court on 8 January
2015. At the conclusion of the custody
proceedings, he was approached
by Sgt Segodi (‘Segodi’) who asked if he was William
Jonkers and identified himself
as a policeman. Segodi was dressed in
civilian clothes, wearing a firearm on his waist. Segodi then told
the plaintiff that he
was arresting him. Segodi did not disclose the
reason for the arrest or explain the plaintiff’s rights to him
in terms of
the Constitution. He was hand cuffed and taken on foot to
the basement parking at West Gate Magistrate Court, where Segodi’s
motor vehicle was parked. There the plaintiff found another officer
seated in the driver’s seat who thereupon drove them
to Gold
Reef City. Segodi sat in the front passenger seat whilst the
plaintiff sat in the rear passenger seat. When the plaintiff
enquired
why he was arrested, Segodi merely told him that ‘yours is a
serious matter’.
12.
On arrival at Gold Reef
City, Segodi un-cuffed him and proceeded to pick up three other
suspects at gate 5, whereafter they left
for Booysens Police Station.
All four suspects sat in the back of the vehicle, behind the
policemen who were seated in front.
13.
At Booysens police
station, Segodi attended to the other suspects first and decided to
release them. When the plaintiff enquired
why he was not being
released he was again told that ‘yours is a serious matter.’
14.
He
was then taken to the Johannesburg Central Police Station where he
was detained overnight. The following morning, on 9 January
2015, he
appeared in court.
[12]
He
heard the prosecutor say something about him having committed a
murder in Cape Town. He was told that he was not getting bail.
The
case was remanded to the 19
th
January 2015 for a formal bail hearing to be held, with the plaintiff
being held in custody during the intervening period. When
asked by
his counsel as to why the case was postponed to the 19
th
January 2015, the plaintiff testified that ‘
I
just assumed, because you can’t always hear, that it was a
serious matter and now I am going to Sun City
[13]
because they say I committed a murder
.’
15.
When he appeared in
court on the 19
th
January 2015, the prosecutor told the court that the pending murder
charge related to a suspect bearing the same name but a different
ID
number to that of the accused (plaintiff). When asked by his counsel
whether he could recall if the prosecutor had told the
court that he
(plaintiff) was a threat to the complainant, his response was:
‘
maybe, I
can’t recall
.’
He testified that he was released on warning, subject to conditions,
and the case was again postponed. More pertinently,
the plaintiff
stated that it was only on 19 January 2015 that he learnt for the
first time that he was being charged for assault
(relating to the
complaint that had been made by Ms Bemand). On this date, he asked
for a legal aid lawyer to assist him. It is
common cause that the
plaintiff was thereafter legally represented by Mr. Morena, as also
appears from the Court record.
16.
During
his evidence in-chief, the plaintiff was referred,
inter
alia,
to
a document headed ‘Notice of rights in terms of the
Constitution,’
[14]
being
the self-same document annexed to the particulars of claim, which
contains a certificate by the detainee confirming that
he has been
informed of his rights and that he understands the contents
thereof.
[15]
The plaintiff
stated that he did not recall being given this document (which
recorded the nature of the charge against him) and
that he did not
‘recognise’ the signature of the suspect appearing
therein. The plaintiff was referred to a document
headed ‘Warning
Statement by Suspect,’
[16]
bearing a signature by the suspect and containing (in paragraph 7
thereof) the suspect’s statement. After reading the statement
in court, the plaintiff confirmed that ‘
I
did tell this statement to the policeman who detained me.’
The
statement was exculpatory in nature and reads in relevant part, as
follows: ‘
I
deny the allegations against me. Usually
my
girlfriend whom I share the child with (Lorna Bemand)
brings
the child to me for weekends as we not staying together. I went to
her place to fetch our child since she failed to brought
her. On my
arrival at her place I noticed that my child (one year –five
days) had a bruise on her forehead. I then took my
child, called the
community and I was advised to open a case against
my
girlfriend
…’
(emphasis
added) Again, the plaintiff testified that he did not recognise the
signature of the suspect appearing thereon, stating
that ‘
the
signature brings doubt
.’
17.
In response to a
question by his counsel as to whether he recalls being asked to sign
documents by the arresting officer, the plaintiff
said ‘
I
can’t recall. It could have happened.
’
18.
During his further
testimony, the plaintiff confirmed that the case was withdrawn
against him. He denied that he had agreed to mediation
or that his
lawyer had explained to him what the mediation process was about.
According to the plaintiff, ‘
Before
it was withdrawn, the prosecutor called me in and said that I must
never hit her
[Lorna
Bemand]
again. I
said I will never hit her again because I just wanted to get away.’
19.
During
cross-examination, the plaintiff denied that Segodi had furnished him
with a written notice of rights in terms of the Constitution
(referred to earlier in the judgment) or that Segodi took down a
warning statement from him or that he made the exculpatory statement
recorded in the warning statement at p.46 of the plaintiff’s
bundle.
[17]
He also denied
that Segodi ever informed him about the charge of assault concerning
the case that had been opened by Ms Lorna Bemand
against him.
20.
The plaintiff admitted
the accuracy of his personal information appearing in manuscript
handwriting in the ‘warning statement
by suspect’ (at p43
of the plaintiff’s bundle), such as his work address, home and
work telephone numbers and date
of birth. Initially, the plaintiff
indicated that he could not recall whether he had provided the
information to Segodi, however,
he admitted that he was not known to
Segodi prior to the arrest and that he may have furnished these
details to Segodi. He however
denied ever having furnished his
identity number to Segodi or the identity number as recorded in the
warning statement. [It was
common case at the trial that the identity
number appearing in the warning statement, being ’6
8
[…]’ was incorrect and that the plaintiff’s
identity number is in fact ‘6
4
[…]’].
21.
When
it was put to the plaintiff that the information concerning the
identity number of the suspect could only have been supplied
by the
plaintiff and that Segodi would have had no idea as to whether or not
the information supplied by the plaintiff was correct
or not, since
Segodi had not verified the information supplied at that stage, the
plaintiff stated that Segodi never asked him
for his ID number and
hence he did not supply it to Segodi. The plaintiff later suggested
that someone else may have given the
information to Segodi and even
went so far as to state: ‘why would I give my fingerprints [to
Segodi]?’
[18]
22.
The
plaintiff agreed under cross-examination that a mediation process had
taken place but stated that it occurred without him ever
agreeing to
it. The plaintiff was questioned about the fallacy of his version,
having regard to the contents of the written informal
settlement
agreement concluded between himself and the complainant, Ms. Lorna
Bemand, on 24 March 2018.
[19]
The plaintiff admitted signing the mediation agreement and being
represented by Mr. Morena during the mediation process.
[20]
Sgt Segodi’s
evidence
23.
Segodi testified that a
case docket, which had been opened on 9 August 2014 concerning a case
of ‘assault under domestic violence’
in respect of a
complainant by the name of Lorna Bemand, was allocated to him, as
investigating officer, for further investigation.
He received the
docket on 10 August 2018. Both the complainant and the
plaintiff were unknown to him at the time.
24.
Once
he had familiarised himself with the contents of the file, which,
inter
alia,
contained
the complainant’s A1 statement
,
he
conducted further investigations.
Inter
alia,
he
went to see the complainant, Ms. Lorna Bemand, and discussed details
of the alleged assault with her, as per her written statement.
[21]
She showed him what she had looked like after the assault, as
depicted on photos that she had taken. He himself observed bruising
to her face, which was consistent with the injuries depicted on the
photographs.
[22]
He also had
sight of a report that had been prepared by a medical practitioner of
a medico-legal examination which he had conducted
on the complainant
together with an affidavit prepared in terms of section 212 (4) of
the CPA that had been deposed to by the examining
doctor, dated 13
August 2013
[23]
and a J88 form
depicting sketches of the injuries clinically observed by the doctor
during the course of his examination, which
depicted bruising and
swelling around the left eye and strangulation marks to the neck of
the complainant.
25.
The
information contained in the investigation diary
[24]
outlined certain other preliminary investigations that Segodi
undertook, which among others included attempts at locating the
plaintiff on more than one occasion, both at his reported residential
address as well as at another address that had been provided
by the
complainant. He could not find the plaintiff at either one of the
addresses. He referred the matter to the SAPS tracing
unit for
purposes of locating the plaintiff after hours. The tracers were
unsuccessful in making contact with the plaintiff after
hours. A
‘point out note’
[25]
was completed and handed to the complainant containing Segodi’s
contact numbers to enable the complainant to contact him
telephonically in the event that she sighted the plaintiff.
26.
Prior to 8 January
2015, Segodi had interviewed the complainant, had read her sworn
statement, had himself observed the injuries
she sustained in the
alleged assault and had considered the medical evidence on record,
including the doctor’s sworn statement,
all of which led him to
conclude or suspect that the crime of assault (involving domestic
violence) had been committed by the plaintiff.
Segodi had experienced
a lack of success in tracking down or making contact with the
plaintiff and he suspected that the plaintiff
was ‘on the run.’
27.
Ms Bemand telephoned
Segodi on 8 January 2015 to inform him that she was present with the
plaintiff at the Family court in Market
Street, Johannesburg. Segodi
was at the Johannesburg Magistrates court when he received the call.
He drove to the Family court
and parked his car in the basement
parking of that court. He found Ms Bemand seated together with the
plaintiff. Ms Bemand pointed
out the plaintiff to Segodi by
indicating that he was the person who had assaulted her. Segodi
introduced himself to the plaintiff
as a police officer and showed
the plaintiff his appointment certificate. He thereupon arrested the
plaintiff. He informed
the plaintiff of his constitutional
rights and of the reason for the arrest.
28.
The
plaintiff was taken to Booysens police station where he was formally
processed within the system. The plaintiff was given a
written notice
of his rights in terms of the Constitution
[26]
and a warning statement was taken from him,
[27]
which he signed. The particulars appearing in manuscript handwriting
on the forms were furnished by the plaintiff to Segodi, who
noted it
onto the form. This included the identity number appearing on the
warning statement. The plaintiff’s fingerprints
were also
uplifted. Upon completion of the paperwork, the plaintiff was
detained at Johannesburg Central holding cells until the
following
day, so that he could be taken to court.
29.
On 9 January 2015,
before going to court, a criminal profile was obtained in reference
to the plaintiff’s name and identity
number as supplied by him
to Segodi. A suspect’s profile will indicate whether or not he
is linked to other cases. According
to Segodi, the profile was
necessary for placement of the docket at court.
30.
Segodi had prepared an
affidavit in which he indicated that the State could consider the
grant of bail to the plaintiff in the matter,
i.e., that he would not
seek to oppose the grant of bail, mindful however, that the grant of
bail lay within the discretion of
the court. The affidavit formed
part of the docket when the matter was placed before the prosecutor
at court. After placing the
docket, Segodi left court – he was
accordingly not in attendance at court during the plaintiff’s
first appearance.
31.
During
cross-examination, Segodi remained adamant that the identity number,
which he had recorded in the warning statement, had
been supplied to
him by the plaintiff. He denied having made a mistake in his recordal
thereof therein. Had the plaintiff provided
him with his correct ID
number, the incorrect profiling of the plaintiff would not have
occurred. He conceded knowing that he could
detain the plaintiff for
48 hours before taking him to court, but felt it better to do so
earlier than later.
32.
Segodi denied having
taken the plaintiff to Gold Reef City in order to apprehend three
other suspects before proceeding to Booysens
police station. During
cross-examination, Segodi stated that the profiling of the plaintiff
was performed by his Captain at Booysens
police station, at his
request, and not by the SAP crime investigation group (CIG), being
the relevant police officers who may
have had systems or processes at
their disposal with which to verify the identity number of the person
whom they were profiling.
Evidence
of Zamikhaya Staffa (Mediation prosecutor)
33.
Mr Staffa (‘Staffa’)
testified that he was the prosecutor who appeared for the State on 25
February 2018 and 24 March
2015 in the case of assault GBH, which the
State had instituted against the plaintiff.
34.
He testified about
several postponements of the case which had occurred at the behest of
the plaintiff. The court record revealed
that the matter was trial
ready as early as 19 January 2015, which is when a formal bail
hearing took place, pursuant to which
the plaintiff was released on
warning on condition that the plaintiff was to have no contact,
direct or indirect, with Ms. Lorna
Bemand. On 19 January 2015, the
matter was postponed to 3 February 2015 for possible mediation,
alternatively, arrangement of a
trial date.
35.
On 24 March 2015,
Staffa was the prosecutor who facilitated a mediation process between
the plaintiff and the complainant. The plaintiff
was legally
represented at the time whilst Ms. Bemand was represented by Staffa
in the matter. To the best of Staffa’s recollection,
the
plaintiff’s legal representative approached him in the morning
and informed him that the plaintiff wished to attempt
mediation to
resolve the matter outside of court. Staffa stated that mediation is
a process which is dealt with outside of court.
It is a way to
facilitate communication between the complainant and the accused.
36.
He confirmed that the mediation process
embarked on by the plaintiff and Ms. Bemand resulted in the
withdrawal of the criminal case
against the plaintiff. It was a
smooth process entered into freely and voluntarily by the parties and
no duress or foul play was
involved. The parties came to an agreement
without anyone forcing them to reach agreement. The State was ready
to proceed with
the case against the plaintiff and there was
overwhelming evidence to proceed with the prosecution at the time.
37.
The plaintiff, complainant, plaintiff’s
legal representative and Staffa all signed the informal mediation
agreement appearing
at p.93 of the plaintiff’s bundle. Staffa
disputed that the mediation process was not willingly entered into by
the plaintiff.
His testimony in this regard was that ‘
it
is incorrect for him
[plaintiff]
to
say that he
[plaintiff]
did
not want to enter into mediation – he had a lawyer guiding him,
to see that his interests are served…what stopped
him from
insisting on having his day in court and refusing mediation?
’
Evidence
of Ms. Bianca Heunis (control prosecutor)
38.
Ms.
Heunis testified that she was one of the acting control prosecutors
at the Johannesburg Magistrate’s court on 9 January
2015. She
received a docket from Segodi on the day in question. After reading
the contents of the docket,
[28]
she was satisfied that the information contained therein
[29]
pointed to the commission of the offence of assault GBH (assault with
the intention to commit grievous bodily harm), hence she
decided to
charge the plaintiff with assault GBH as opposed to common assault.
The plaintiff could not be charged with an offence
under the
provisions of
section 17
of the
Domestic Violence Act 1998
, as no
protection order had in fact been granted in the matter. She made an
entry to this effect in the SAP investigation diary
on 9 January
2015.
[30]
Ms Heunis stated that she had regard to the J88 which corroborated
that serious injuries had been sustained by the complainant
in the
incident.
39.
She
also had sight of the plaintiff’s profile, obtained using the
identity number appearing in the docket.
She
satisfied herself that the name and identity number of the suspect
appearing on the first page of the profile was the same as
that which
had been recorded in the docket. Under cross-examination, Ms.
Heunis indicated that she had read through the profile
document and
had noticed that different identity numbers were listed for ‘William
Jonkers.’ She took account of entries
in the investigation
diary in the docket which,
inter
alia,
contained an entry to
the effect that the suspect could not be located at his residential
address and that tracers had attempted
to contact him, but without
success.
She
made a decision that bail should be opposed at that juncture so that
the plaintiff’s address could be verified,
[31]
with the requisite verification statement thereafter being placed in
the docket, and so that the information appearing in the profile
could be verified. A profile is obtained by using a person’s
identity number. The profile in question reflected that there
was a
pending murder case in Cape Town against the suspect bearing the
plaintiff’s name and the same identity number as recorded
in
the docket concerning the plaintiff
40.
The relevant SAP69 form was not yet to
hand on 9 January 2015. The SAP69 is a document that reflects a
suspect’s previous
convictions, if any, and is obtained by
using the fingerprints of a suspect. According to Ms. Heunis, the SAP
69 is therefore regarded
as being more accurate than a profiling
document. She exercised her discretion when recommending that bail be
opposed, for all
the reasons mentioned earlier.
41.
In making a decision whether or not to
prosecute, Ms. Heunis testified that she would ordinarily have regard
to the allegations
in the docket and determine whether there are
outstanding investigations that have to be conducted, for example, if
there are witness
statements that can be obtained to support the
allegations regarding the commission of a crime.
42.
During cross-examination Ms. Heunis was questioned about Segodi’s
statement in the docket that bail could be granted.
Ms. Heunis stated
that the discretion lies with the prosecution whether or not to
oppose bail and that it is the magistrate who
ultimately makes the
decision to grant or refuse bail.
43.
It was put to Ms Heunis that had she properly considered the
information appearing in the profile document, she would have noticed
that the pending murder charge related to a certain William Jonkers
with date of birth being 15/12/1994 as opposed to the plaintiff’s
birthdate being 4/3/1995, and she therefore ought to have verified
the information appearing in the profile before taking the decision
to oppose bail. Ms. Heunis responded by stating that it was not her
job to perform investigations, hence her instruction to the
investigating officer that the information be verified. When asked
why Ms. Heunis did not instruct the police to first verify the
information before placing the matter on the roll, Ms. Heunis stated
that ‘
We don’t usually wait – it was the first
appearance. Since it was the weekend, when was he to appear in
court?.’
Evaluation
of evidence
44.
The plaintiff and the defendants’ versions regarding the manner
in which the plaintiff was arrested and the events that
unfolded
thereafter, including those that led to the Plaintiff’s
continued detention, are inconsistent.
45.
To
the extent that their evidence gave rise to two mutually conflicting
versions of the facts, the proper approach to deciding which
to
prefer is that described in the oft cited analysis by Nienaber JA in
Stellenbosch
Farmers’ Winery Group Ltd and another v Martell et Cie SA and
others
2003 (1) SA 11
(SCA), at para 5.
[32]
(See also e.g.,
Moropane
v Southon
(755/12)
[2014] ZASCA 76
(29 May 2014) para [50]; and
National
Employers’ General Insurance Co. Ltd v Jagers
1984 (4) SA 437
(E) at 440 E-G.)
[33]
46.
The established principle is
therefore that when there are mutually destructive versions before
the court, the onus of proof can
only be discharged if the party who
bears the onus has established his case on a preponderance of
probabilities. The corollary
principle, also firmly established,
namely, that a court has to be satisfied that the version of the
party bearing the onus is
true and that of the other party false in
order for the party who bears the onus to succeed in discharging his
onus of proof,
[34]
is only applicable in cases where there are no probabilities one way
or the other (See:
African
Eagle Life Assurance Co Ltd v Cainer
1980
(2) SA 324
(W) )
.
47.
Applying the above principles to the facts of the present matter it
is first necessary to consider the credibility of the plaintiff
and
the witnesses for the defendants.
48.
The plaintiff did not leave a
favourable impression upon me. His evidence vacillated between him
not being able to recall whether
or not he had been given documents
by the arresting officer to sign
[35]
(stating in-chief that it may have happened) to later denying, during
cross-examination, that he had been given such documents
or that he
had signed same. When testifying in-chief, the plaintiff was
specifically asked whether he had signed the said documents.
His
response was rather peculiar. He stated that he did not ‘recognise’
the signature [of the suspect] appearing thereon.
On another occasion
he intimated that the signature appearing on the warning statement is
‘doubtful.’ Doubting something
is one thing – doubt
implies a measure of uncertainty about something. Not recognising
something implies not knowing or not
being able to identify something
which is unclear. It is a whole other thing to state something with
conviction, in certainty of
truth. If the plaintiff did not sign
those documents, one would have expected a consistent and emphatic or
unequivocal statement
to that effect. The plaintiff’s
answer, namely that he doubted or did not recognise the signature is
obscure and difficult
to understand, particularly in the context of
testimony directed at establishing a fact.
49.
Aside from the more obvious internal contradiction between the
plaintiff’s pleaded version, namely, that he appeared in
court
on the same day as his arrest (thus resting his case for unlawful
detention on the commencement thereof after his first appearance
in
court) and his oral testimony in court, namely, that he was detained
by the police overnight and only appeared in court the
next day, his
suggestion in evidence that the prosecution had failed due to there
being insufficient or inadequate evidence to
sustain a conviction
against him, was shown to be false by the documentary evidence to the
contrary. The documentary evidence showed
that the state was ready to
proceed with the prosecution as from 19 February 2018 and that it
terminated in favour of the plaintiff
only as a result of a
successful mediation process. The case was postponed on various
occasions at the instance of the plaintiff
after that date. The
evidence showed clearly that the plaintiff not only participated in a
mediation process, but did so freely
and willingly, with the
assistance of legal advice. In my view, the plaintiff’s
admitted apology to the complainant and concomitant
undertaking never
to assault her again, as recorded in the settlement agreement,
ultimately lent credence to the strength of the
State’s case
against the plaintiff.
50.
The plaintiff’s evidence that the mediation process occurred
without him ever having agreed to it was also demonstrably
false. It
was effectively belied by the testimony of Mr. Staffa and the
contents of the informal mediation agreement, signed by
the
plaintiff, which not only signified his agreement therewith but also
irrefutably demonstrated his voluntary participation in
such process.
The document itself recorded an acknowledgement that the State could,
at its election, continue with the prosecution
in the event that the
plaintiff breached the terms of the agreement.
51.
The plaintiff conceded that the information pertaining to his work
address and work telephone number and date of birth, as recorded
by
Segodi in the warning statement, was correct. Only the plaintiff’s
identity number recorded therein was incorrect. Sgt
Segodi testified
that the plaintiff had furnished all the information recorded in the
warning statement to him, including his identity
number. The
plaintiff denied having provided his identity number to Sgt. Segodi.
It was common cause that the plaintiff was unknown
to Sgt Segodi at
the time. On the probabilities, Segodi would not have known these
details, including the plaintiff’s identity
number, unless they
had been supplied to him by the plaintiff. Likewise, the
probabilities support a finding that Segodi had no
idea that the
identity number so supplied, was incorrect. He also had no objective
reason to doubt the correctness thereof. The
plaintiff’s
version was that he had not supplied the identity number recorded in
the warning statement to Segodi at all,
not
that Segodi had
mistakenly recorded the incorrect number as supplied by the plaintiff
therein. The probabilities do not favour
the plaintiff’s
version in this regard.
52.
The plaintiff’s version, namely that he was only informed of
the assault for the first time on 19 February 2015, that
is, on the
occasion of his second appearance in court, appears to me to be
wholly improbable, if not false. Even accepting, for
purposes of
discussion, the plaintiff’s evidence in-chief which was to the
effect that he could not recall whether he signed
or was given the
notice of rights document, (or warning statement), then it remains
possible that he did in fact sign or receive
the documents wherein he
was informed of the reason for his arrest and detention. He would
therefore have known of the case of
assault under domestic violence
that had been opened against him. Although he later denied having
signed the documents, he never
went as far as to state that he had
not read or had sight of such document/s at the time - either way, he
would have known of the
assault case prior to his appearance in
court.
53.
On the probabilities, had the
correct identity number been supplied by the plaintiff, a correct
profile would have been obtained
in respect of the plaintiff.
[36]
54.
Having regard to the numerous
inconsistencies
[37]
and internal and external contradictions in the plaintiff’s
version, and since the plaintiff’s evidence on critical
aspects
was proven to be false, I conclude that he was not a credible
witness. As such, his version falls to be rejected on all
material
aspects where it differs from that of the defendant’s
witnesses.
55.
Sgt. Segodi impressed me as an
honest witness. He readily made concessions where these were called
for
[38]
and admitted to having made some mistakes during the administrative
process that took place prior to his placement of the docket
at
court. At one stage during cross-examination, he declined to answer a
question on a peripheral issue relating to the time at
which the
complainant had signed a pointing out statement. I do not consider
that this factor was of such critical importance that
it served to
impede his credibility or that it affected the reliability of his
remaining testimony. His version was, in my view,
neither improbable
nor inconsistent in any material respect.
56.
Segodi was criticized by the
plaintiff’s counsel for not having verified the information
appearing in the profile document
obtained in respect of the
plaintiff before taking him to court. In my view, the criticism was
rather unfair in the circumstances
of the matter. The profile
document containing small print was obtained earlier in the morning
on 9 January 2015 before Segodi
went court. It is not known whether
he had the opportunity to study the
minutia
of its contents before leaving Booysens police station in order to
collect the plaintiff from the holding cells at Johannesburg
Central
police station.
[39]
The first page of the profile document linked a pending murder charge
to the identity number that had been provided by the plaintiff,
which
correlated with the plaintiff’s name. The birthdate of the
suspect who was linked to the pending murder charge in Cape
Town,
only appeared further down on page 7 of the document, and this may
have been a reason as to why such detail may have been
overlooked.
57.
Mr. Staffa’s evidence was not challenged on material aspects,
nor was his credibility impugned under cross-examination.
His
evidence was corroborated in material respects by the documentary
evidence on record.
58.
Ms. Heunis also impressed me as an honest witness. Her evidence was
not gainsayed by means of credible evidence to the contrary,
nor was
it shown to be either internally or externally inconsistent or
implausible in any material respect. Ms Heunis was also
criticised by
the plaintiff’s counsel for not having verified the information
appearing in the profile document, considering
that she had
recommended that bail be opposed on the strength of information
contained therein, which purported to link the plaintiff
to a pending
murder case in Cape Town, which later proved incorrect. On the
facts of the matter, I am not persuaded that
Ms. Heunis failed to
properly consider the contents of the docket, including the profile
document, when making the recommendation
that bail be opposed. This
was not a case where the prosecutor merely placed the matter on the
roll to then simply have it postponed
for further investigation. I
deal with this aspect in greater detail further below.
59.
This brings me to a consideration of the relevant legal principles
that apply to claims for unlawful arrest and detention, and
malicious
prosecution. I have already alluded to the law governing the
incidence of the onus in paragraph 9 above.
60.
As regards the plaintiff’s
claim for unlawful arrest, the first defendant relies on the
provisions of
sections 40(1)(b)
or
40
(1)(q) of the CPA
[40]
to justify the plaintiff’s arrest without a warrant on 8
January 2015. The jurisdictional facts required to be established
for
a successful
s40(1)(b)
defence are that (i) the arrestor must be a
peace officer; (ii) the arrestor must entertain a suspicion; (iii)
the suspicion must
be that the suspect (arrestee) committed an
offence referred to in schedule 1;
[41]
and (iv) the suspicion must rest on reasonable grounds. Once these
jurisdictional facts are present, a discretion whether or not
to
arrest arises.
[42]
As to the question of whether or not the peace officer exercised his
discretion properly, all that is required is that he acted
in good
faith, rationally and not arbitrarily.
[43]
Was
the arrest in terms of
s 40(1)(b)
justified?
61.
S 40(1)(b)
gives a peace officer the
power to arrest without warrant where he or she reasonably suspects
that a person has committed an offence
listed in Schedule 1, which
includes ‘
assault, when a
dangerous wound is inflicted
.’
On the version of the defendants, the plaintiff was arrested for
‘assault under domestic violence’ and later
charged, at
the instance of the prosecution, with assault GBH.
62.
In
De
Klerk v Minister of Police
[44]
Shongwe JA stated as follows:
“
It
is common cause that Schedule 1 does not include assault with intent
to do grievous bodily harm. It lists an offence of ‘assault
when a dangerous wound is inflicted’. Therefore one of the
jurisdictional facts is absent. It cannot be said that Ms Ndala
entertained a reasonable suspicion that the listed offence had been
committed. It is trite that the arrestor must be a peace officer,
who
entertains a suspicion that the suspect committed an offence referred
to in Schedule 1 and that the suspicion must rest on
reasonable
grounds (see
Duncan
v Minister of Law and Order
1986
SA (2) 805 (AD) at 818 G-J). The learned Judge in
Duncan
stated further that ‘If the jurisdictional requirements are
satisfied, the peace officer may invoke the power conferred by
the
subsection; ie, he [or she] may arrest the suspect. In other words,
he [or she] then has a discretion as to whether or not
to exercise
that power (cf
Holgate-Mohamed
v Duke
[1948]
1 All SA ER 1054 (HL) at 1057). No doubt the discretion must be
properly exercised. But the grounds on which the exercise
of such a
discretion can be questioned are narrowly circumscribed.”
63.
An
enquiry into the legality of an arrest effected without a warrant
undertaken in an earlier matter of
R
v Jones
[45]
came up short despite the
fact that an arresting officer had information that an assault with a
sjambok
by
a man on a young girl aged 15 years had occurred. He also had
information that the girl had an open wound on her face.
Although
the incident was described as a cruel and savage attack on her and
the court recognized that she must have suffered
excruciating pain,
it held that without more information as to the site or extent of the
wound occasioned by the blows, that the
information at the arresting
officer’s disposal (concerning the mere fact that
sjambok
blows
had been delivered to her and that she had an open wound on her face)
did not afford him reasonable grounds for suspecting
that ‘an
assault in which a dangerous wound is inflicted’ within the
meaning of Schedule 1 had been committed.
[46]
64.
In
my view, the evidence in the present matter did not reveal that
Segodi suspected that an assault involving the infliction of
a
dangerous wound had been committed. Accordingly, it has not been
demonstrated that the arrest without warrant in terms of s 40(1)(b)
was justified.
Was
the arrest in terms of s 40(1)(q) justified?
65.
In the particulars of
claim, the plaintiff alleged that he was arrested for [an act of]
domestic violence. The first defendant sought
to justify the arrest
on the basis of s 40(1)(q) of the CPA. In terms of
section 1
of the
Domestic Violence Act, 1998
domestic violence includes physical abuse
of a complainant where such conduct harms or may cause imminent harm
to the safety, health
or wellbeing of the complainant.
[47]
66.
Section
40(1)(q)
validates an arrest by a peace officer without a warrant of
any person ‘who is reasonably suspected of having committed an
act of domestic violence as contemplated in
section 1
of the
Domestic
Violence Act which
constitutes an offence in respect of which
violence is an element.’ Violence in its ordinary meaning
entails behaviour involving
physical force intended to hurt, damage
or kill.
[48]
An assault would therefore qualify.
67.
It is
clear that there must be physical violence inflicted or imminent
before an arrest can be effected. See:
Minister
of Safety and Security v M
(CA350/2012) [2014] ZAECGHC 58 (10 July 2014
)
at
para [24]
[49]
68.
In
Minister
of Safety and Security v Katise
(328/12)
[2013] ZASCA 111
(16 September 2013), Lewis JA considered the
provisions of
s 40(1)(q)
of the CPA and found that the conduct of the
plaintiff/arrestee in that case had fallen within the ambit of the
section. The plaintiff
had not been arrested at the scene of the
domestic violence incident, but sometime thereafter. The suspect was
arrested only after
he had been treated in hospital and then brought
to the police station.
[50]
Lewis JA remarked in para [14] that ‘
But
in any event, the conduct of the Katise
[suspect]
falls within the ambit of s
40(1)(q) of the Criminal Procedure Act.’
As pointed out In para [15], this was because Lewis J found that ‘
the
evidence clearly demonstrates that Katise was guilty of committing
acts of domestic violence
.
That was enough to make the
arrest without warrant lawful under s 40(1)(q) of the Criminal
Procedure Act
.’
69.
Whether
or not an arresting officer has reasonable grounds for the suspicion
entertained by him or her is a question which is required
to be
answered objectively. In other words the test is not whether
the officer believes that he has reason to suspect, but
whether, on
an objective approach, he in fact had reasonable grounds for his
suspicion at the time he effected the arrest.
[51]
Jones J in
Mabona
and Another v Minister of Law and Order and others
1988 (2) SA 654
(SE) fashioned the enquiry in the following terms:
“
Would
a reasonable man in the second defendant's position and possessed of
the same information have considered that there were
good and
sufficient grounds for suspecting that the plaintiffs were guilty of
conspiracy to commit robbery or possession of stolen
property knowing
it to have been stolen?”
[52]
70.
In my view, the evidence at
trial clearly established that that Segodi had good reason to suspect
that the plaintiff had used
physical
force aimed at harming the complainant (which in fact had harmed the
complainant, who had sustained serious injuries),
and that the
plaintiff had thus
committed the crime of assault, which itself constituted an act of
physical violence as contemplated in
s 1
of the
Domestic Violence
Act. The
facts at his disposal at the time of the arrest (which
included the complainant’s statements as contained in A1 and in
the
application for an interim protection order to the effect that
she had been choked, pulled by the neck and fisted and slapped in
the
face, as also confirmed by police interviews conducted on 9 August
2014
[53]
and thereafter by Segodi; the objective medical evidence in the J88
form, which suggested an injury consistent with strangulation;
the
photographic images depicting the serious nature of the injuries
sustained by the complainant and Segodi’s own observation
of
such injuries), in my view all point to the conclusion that the
suspicion that the plaintiff had committed an
act
of domestic violence upon the mother of his child by perpetrating an
offence containing an element of violence, namely that
of assault,
was entertained on
reasonable grounds. Although the plaintiff denied in his evidence
that he had assaulted the complainant, it was
not suggested at trial
that Segodi had failed, upon ascertaining the plaintiff’s
whereabouts, to exercise his discretion
to arrest the plaintiff
properly.
71.
The submission in the
plaintiff’s written heads of argument that reliance upon the
provisions of
s 40(1)
(q) was misplaced because the complainant was
not in a relationship with the plaintiff and because they were not
living together
(or because they had not lived together for a period
of three months, as submitted in oral argument) is not understood,
bearing
in mind the definition of domestic relationship in
section 1
of the domestic Violence Act.
[54]
The parties share a child and had in any event themselves indicated
in their respective statements
[55]
that they had been involved in a domestic relationship.
72.
I thus find that the arrest of the plaintiff was based on a
reasonable suspicion that the Plaintiff had committed an act of
domestic violence (
as
contemplated in
section 1
of the
Domestic Violence Act) as
constituted by the offence of assault containing an element of
violence,
and was accordingly justified and lawful
under the provisions of
s 40(1)(q)
of the CPA.
Was
the Plaintiff’s detention lawful?
73.
The evidence clearly established that the plaintiff was arrested on 8
January 2015 and detained overnight so that he could be
taken to
court the following day. The plaintiff was unknown to Segodi at the
time of his arrest. Segodi had no ulterior purpose
for detaining him
on 8 January 2015 - the purpose was to secure his attendance at
court.
74.
As pointed out in
Naidoo
v Minister of Police
[56]
‘it is now settled
that the purpose of the arrest is to bring the arrestee before the
court for the court to determine whether
the arrestee ought to be
detained further, for example, pending further investigations or
trial. (See
Minister of
Safety and Security v Sekhotho & Another
2011 (5) SA 367
paras 30-31).’
75.
In
Carmichelle v Minister of Safety
[2001] ZACC 22
;
2001 (10) BCLR 995
(CC)
the constitutional court stated that ‘
a police officer has a
clear duty to bring to the attention of the prosecutor any factors
known to him relevant to the exercise
by the magistrate of his
discretion to admit a detainee to bail.’
76.
In written heads of argument
presented on behalf of the plaintiff at trial, reliance was placed on
the case of
Minister of
Police v du Plessis.
[57]
There the Supreme
Court of Appeal affirmed the legal duties resting on the police and
on the prosecuting authorities in respect
of detention after arrest,
taking into account the pressures under which they operate. In that
case, the trial court had found
that the docket contained no
information that pointed to a commission of an offence by the first
plaintiff, yet the prosecutor
had decided to proceed against him. The
SCA agreed that there had been no basis for proceeding against the
first plaintiff. The
SCA held (in para 34) that a ‘
prosecutor’s
function is not merely to have the matter placed on the roll to then
simply be postponed for further investigation.
A prosecutor must pay
attention to the contents of his docket…A prosecutor must act
with objectivity and must protect the
public interest…’
77.
The facts in Du Plessis
supra
are distinguishable from the
facts of the present matter. I
n
that case there was a determination of fact regarding exactly when
the prosecution knew that the accused person was not involved
in the
commission of the offence but was a mere bystander; and therefore had
to be released, meaning the persistence with the prosecution
of him
was therefore unlawful. In the present case, t
here was
clear evidence of the commission by the plaintiff of an act of
domestic violence by virtue of the alleged commission of
the offence
of assault, involving as it did, an element of violence and which
resulted in serious injuries having been sustained
by the
complainant. There was no prospect of mistaken identity, as the
plaintiff and the complainant were involved in a domestic
relationship and as such were intimately known to each other.
78.
In her discretion, the control prosecutor preferred charges of
assault GBH against the plaintiff. In my view, the evidence of
Ms.
Heunis points indelibly to the conclusion that she diligently
considered the information placed before her in the docket, including
Segodi’s statement that he was not opposed to bail being
granted. Ms Heunis testified that she had regard to information
appearing in the application that was made by the complainant for an
interim protection order, wherein Ms Bemand had indicated
that the
plaintiff had threatened her safety and well-being and had sought to
intimidate her to drop the case of assault against
him. She also
considered the information appearing in the investigating diary in
the docket. On 11 August 2014, an entry was made
therein by Segodi
that the suspect was on the run as per A1 [complainant]. Segodi had
interviewed the complainant shortly after
the docket was allocated to
him when a report was made to him by the complainant. Further
entries in the investigating diary
showed that the plaintiff could
not be located at the residential address that had been provided by
the complainant and that further
attempts to locate the plaintiff had
also proven unsuccessful. On those facts, it would not have been
unreasonable for Segodi to
have suspected that the plaintiff may have
been avoiding arrest. Ms. Heunis considered all such information, and
recommended that
bail be opposed, pending verification of the
plaintiff’s residential address as well as the information
appearing in the
plaintiff’s criminal profile, as mentioned
earlier in the judgment. It cannot therefore be said that the control
prosecutor
failed to conscientiously apply her mind to the docket or
to all the information at her disposal when placing the matter on the
roll or when recommending that bail be opposed by the State.
79. The prosecutor who appeared on
behalf of the State on 9 February 2015, being the date of the
plaintiff’s first appearance
in court, was not called to
testify at the trial. He would, on the probabilities, have had regard
to the self-same information
appearing in the docket when exercising
his own discretion in opposing bail at that juncture. He would also
have had regard to
Ms. Heunis’s reasons for recommending that
bail be opposed, which were recorded on the docket. The Plaintiff did
not suggest
in his testimony that the prosecutor had misled the court
on this occasion or had withheld pertinent information from the
court.
The prosecutor was armed with a criminal profile albeit
obtained in respect of an incorrect identity number that had been
provided
by the plaintiff himself, which signified that the plaintiff
had a pending murder case in Cape Town. One must bear in mind that
neither the investigating officer not the prosecution had knowledge
of the incorrect identity number at that stage. The court record
reflects that the plaintiff elected to conduct his own defence on 9
January 2015. The case was postponed to the 19
th
January
2015 for purposes of conducting a formal bail application, which
resulted in the plaintiff being detained for a further
period of ten
days during the intervening period. It is apparent from the court
record that both the prosecutor and the plaintiff
addressed the court
regarding the question of bail and that the magistrate, in the
exercise of her discretion, declined to grant
bail at that juncture.
80.
In the circumstances, I conclude that the second defendant has
succeeded in discharging the onus of proving that the continued
detention of the plaintiff during the relevant period was lawful.
Claim
for malicious prosecution
81.
As was held in
Minister for Justice and Constitutional Development
v Moleko
2009 (2) SACR 585
at para [8], in order to succeed (on
the merits) with a claim for malicious prosecution, the plaintiff was
required to allege and
prove that –
(a) the second defendant set the law
in motion (instigated or instituted the proceedings);
(b) the second defendant acted without
reasonable and probable cause;
[58]
(c) the second defendant acted with
‘malice’ (or
animo
injuriandi);
[59]
and
(d) that the prosecution has failed.
82.
It was common cause in the evidence that the requirement in (a) was
satisfied. The evidence did not establish that the requirement
in (b)
was proven. The requirement in (c) was not alleged or proven at all
and on this score alone, the claim cannot succeed. As
to the
requirement in (d), although the prosecution terminated in favour of
the plaintiff, it did not ‘fail’ in the
sense that it was
discontinued for a lack of evidence necessary to sustain a
conviction. I have already dealt with the facts relating
to the
discontinuance of the prosecution and the reasons therefore.
83.
In the circumstances, the plaintiff’s claim for malicious
prosecution cannot succeed.
84.
For all the reasons
given, I conclude that the defendant is not liable to the plaintiff
on the merits of the Plaintiff’s claims.
The general rule is
that costs follow the result. I was not referred to any facts or
circumstances that would justify a departure
from the general rule,
nor do I consider there to be any reason to do so.
85.
In the circumstances, I
make the following order:
ORDER
The Plaintiff’s
claims are dismissed with costs.
________________
MAIER-FRAWLEY
AJ
Date
of hearing: 15- 16 & 19-21 November 2018
Judgment
delivered: 20 December 2018
APPEARANCES:
Counsel
for Plaintiffs: Adv
.
N. Makopo
Attorneys
for Plaintiffs: AF Van Wyk Attorneys
Counsel
for Defendant: Adv. M.W. Dlamini
Attorneys
for Defendant: State Attorney
[1]
T
he
National Director of Public
Prosecutions
was
substituted as second defendant in the place of the
Director
of Public Prosecutions
by
way of notice dated 6 November 2018, which I am told, occurred by
agreement between the parties.
[2]
See: para 9
of the particulars of claim.
In
support of this averment, the plaintiff relied on a document headed
‘Notice of Rights in terms of the Constitution’,
attached as “WJ1”, evidencing that the plaintiff was
informed that he was being detained for ‘assault under
domestic violence as per case 168/08/2014 – SAP
14/44/01/2015’. The plaintiff avers in para 10 of the
particulars
of claim that he was
unlawfully
arrested [on 8 January 2015].
[3]
In para 10 of the parties’ pre-trial minute dated 2 November
2018 (at p88 of the papers) the plaintiff admitted having
appeared
in court on the 4
th
January 2015 but stated that this was not his first appearance in
court.
[4]
The defendant’s amended plea referred to section 40(1)(j) of
the CPA but at the commencement of the trial, the defendant
sought
an amendment thereof to reflect section 40(1)(q) of the CPA, which
was not opposed, and which was accordingly granted.
[5]
On
the pleadings, no distinction was drawn between the two separate and
distinct causes of action of wrongful arrest (and detention)
and
malicious prosecution. (See Tӧdt v Ipser
1993
(3) SA 577
(A)
at 587 A-C.)
As
regards the claim for malicious prosecution, there were no
allegations in the particulars of claim to the effect that the
defendants had acted with ‘malice’ (or
animo
injuriandi),
being one of the four
elements required to be alleged (and proved) in a claim for
malicious prosecution.
As
regards the claim for unlawful detention, there was no allegation
that the detention of the plaintiff, prior to his first appearance
in court [on 8 January 2015, on the plaintiff’s pleaded
version], was unlawful. Indeed, the issue of the unlawfulness of
the
detention prior to the first appearance in court [on 8 January 2015]
did not feature in the plaintiff’s pleaded case,
assumedly
because the plaintiff was averred to have been arraigned in court on
the same day as his arrest. No amendment was sought
by the plaintiff
at the trial in order to bring his claim within the purview of a
claim for unlawful detention relating to the
period of detention
prior to the plaintiff’s first appearance in court, or to
incorporate the necessary averments as regards
the claim for
malicious prosecution.
[6]
See: para 16.1 at p41 of the papers (as read with paras 12.1 to 13.2
of the plea).
[7]
See
Minister of Police v Du
Plessis
(666/2012)
[2013]
ZASCA 119
(20 September 2013) at para [14] with reference to
Minister of Law and Order
and others v Hurley and another
1986
(3) SA 568
(A) at 589E-F.
[8]
Ibid
Du
Plessis,
para [17].
[9]
See:
Minister of Safety and
Security v Sekhoto
2011
(1) SACR 315
SCA at 331C [para 42].
[10]
See:
Minister for Justice
and Constitutional Development v Moleko
2009
(2) SACR 585
SCA at 590f [para 8].
[11]
Assault with intent to do grievous bodily harm.
[12]
According to the Court record of the proceedings on that day, being
a public record on which both parties relied at trial, the
prosecutor was one, Mr. Sapepa, From the handwritten record, it
appears that the prosecutor, in opposing bail, addressed the
court
with reference to the seriousness of the alleged assault on the
complainant as well as the medical evidence contained in
the J88,
which confirmed injuries such as swelling, and marks consistent with
strangulation to the neck of the complainant. In
addition, reference
was made to a pending case of murder in Cape Town concerning the
accused before court (present plaintiff).
[13]
Being a reference to the Johannesburg Central prison.
[14]
The document appears at p.43 of the plaintiff’s bundle.
[15]
As indicated earlier, the plaintiff relied on the contents of this
document for his averment that he had been arrested for domestic
violence. Paragraph 1 of the notice reads as follows: ‘You are
being detained for the following reason: Assault under domestic
violence as per case 168/08/2014 – SAP 14/44/01/2015.’
[16]
The warning statement appears at pp 44 -47 of the papers. The
suspect’s exculpatory statement recorded therein appears
at
p.46 of the papers. The warning statement records the reason for the
arrest as ‘assault under domestic violence.’
[17]
This testimony is at variance with his evidence-in-chief which was
to the effect that he could not recall having signed
any
documents, stating that he may have done so, and was also
inconsistent with his version that he had relayed the contents
of
the statement, as recorded therein, to Segodi.
[18]
This evidence was at variance with the plaintiff’s admission
during pre-trial enquiries, namely, that his fingerprints
were
uplifted after his arrest, as recorded in para 7 at p.87 of the
papers.
[19]
The informal settlement agreement appears at p93 of the plaintiff’s
bundle.
[20]
The mediation agreement records,
inter
alia
, that the parties
’
acknowledge that
this agreement is entered into freely, voluntarily and the parties
are of sound mind and sober senses. The parties
hereby agree that
the matter will be withdrawn subject to the following: See
withdrawal statement attached. The parties acknowledge
that the
State may reinstitute a prosecution should there be non-compliance
with the terms of the agreemen
t.’
The attached withdrawal statement, which was deposed to by Ms. Lorna
Bemand under oath, records that the charge of assault
GBH was to be
withdrawn for the following reasons: ‘1.1
Accused
has apologised and I have accepted the apology. 1.2 Accused
undertakes not to assault me ever again.
’
[21]
According
to her sworn statement contained in ‘A1’ of the docket,
,
Ms. Bemand stated
that she was assaulted by the father of her child [plaintiff] on 9
August 2014 at 29 Water Bok, corner Lindeque
drive and Bella vista
Road, West Turffontein. The plaintiff allegedly assaulted her with
open hands and fists on the face and
pulled her by the hair. He also
pulled her by the neck, resulting in injuries to the face and neck
and she was also shocked.
[22]
A black and white copy of the photographs appears at p. 11 of the
plaintiff’s bundle.
[23]
Segodi testified that after he placed the docket at court, he was
instructed by the prosecutor have the examining doctor complete
another 212 affidavit on an updated form. The doctor duly did so on
14 January 2015. A copy of the updated s212 affidavit appears
at
p.38 of the defendant’s bundle.
[24]
An entry made in the investigation diary on 9 August 2014 records
that the complainant was interviewed at the crime scene. A
J88 form
was issued to the complainant, who promised to bring it back when
she returned from the doctor.
[25]
A copy of the point out note appears at p35 of the defendant’s
bundle.
[26]
Being the notice annexed to the plaintiff’s particulars of
claim.
[27]
A copy of the warning statement appears at p.46 of the plaintiff’s
bundle.
[28]
Information at her disposal in the docket consisted,
inter
alia,
of the complainant’s
statement (A1); the medical report containing the doctor’s
clinical diagnoses and opinion concerning
the injuries sustained by
the complainant, together with the J88; photographs depicting visual
images of the injuries sustained
by the complainant; and a document
headed “Notice to respondent to show cause (submit
reasons why a protection order
should not be issued (in terms of
section 5(4))
of the
Domestic Violence Act, 116 of 1998
)”
issued by the clerk of the Family court, Market Street, on 13 August
2014, together with an application for a protection
order in terms
of
section 4(1)
of the
Domestic Violence Act, 1998
, as well as the
court record pertaining to such proceedings. The court record
reflects that the parties were absent on 13 November
2014 when the
matter was called, resulting in the matter being struck off the roll
by the additional Magistrate on that date.
The application for a
protection order contained the complainant’s statement, which
was recorded in para 5 thereof and
in which she alleged that the
plaintiff had hit her with his hands, had put his hands around her
neck, had hit her with his fist
in her face and had pulled her hair.
It was allegedly only when someone knocked on the door that the
plaintiff stopped assaulting
the complainant.. The complainant also
alleged therein that the plaintiff had been threatening and
intimidating her to drop the
criminal case which had been opened at
Booysens SAP. The documents relating to the interim protection
order appear at pp.56-67
of the defendant’s bundle.
[29]
Specifically the infliction of serious injuries. According to Ms.
Heunis, she was satisfied that the J88 corroborated the seriousness
of the injuries and the allegations of how the plaintiff assaulted
the complainant.
[30]
The entry appears at p. 71 of the defendant’s bundle and
reads: ‘
There is no
protection order against the accused. The accused cannot therefore
[be] charged with contravening
sec 17
of the
Domestic Violence Act.
The
matter was struck off the roll. See copy of the records.’
[31]
In this regard, Ms Heunis stated that she took account of
information in the investigation diary that the police could not
trace or find the plaintiff at his residential address as provided
by the complainant.
[32]
“
The
technique generally employed by courts in resolving factual disputes
of this nature [i.e. where there are two irreconcilable
versions]
may conveniently be summarised as follows. To come to a conclusion
on the disputed issues a court must make findings
on (a) the
credibility of the various factual witnesses; (b) their reliability;
and (c) the probabilities. As to (a), the court’s
finding on
the credibility of a particular witness will depend on its
impression about the veracity of the witness. That in turn
will
depend on a variety of subsidiary factors, not necessarily in order
of importance, such as (i) the witness’s candour
and demeanour
in the witness box, (ii) his bias, latent and blatant, (iii)
internal contradictions in his evidence, (iv) external
contradictions with what was pleaded or put on his behalf, or with
established fact or with his own extra-curial statements or
actions,
(v) the probability or improbability of particular aspects of his
version, (vi) the calibre and cogency of his performance
compared to
that of other witnesses testifying about the same incident or
events. As to (b), a witness’s reliability will
depend, apart
from the factors mentioned under (a)(ii), (iv) and (v) above, on (i)
the opportunities he had to experience or
observe the event in
question and (ii) the quality, integrity and independence of his
recall thereof. As to (c), this necessitates
an analysis and
evaluation of the probability or improbability of each party’s
version on each of the disputed issues.
In the light of its
assessment of (a), (b) and (c) the court will then, as a final step,
determine whether the party burdened
with the onus of proof has
succeeded in discharging it. The hard case, which will doubtless be
the rare one, occurs when a court’s
credibility findings
compel it in one direction and its evaluation of the general
probabilities in another. The more convincing
the former, the less
convincing will be the latter. But when all factors are equipoised
probabilities prevail
.”
[33]
‘…
Where
the onus rests on the plaintiff as in the present case, and where
there are two mutually destructive stories, he can only
succeed if
he satisfies the court on a preponderance of probabilities that his
version is true and accurate and therefore acceptable,
and that the
other version advanced by the defendant is therefore false or
mistaken and falls to be rejected. In deciding whether
that evidence
is true or not the court will weigh up and test the plaintiff’s
allegations against the general probabilities.
The estimate of the
credibility of a witness will therefore be inextricably bound up
with a consideration of the probabilities
of the case and, if the
balance of probabilities favours the plaintiff, then the court will
accept his version as being probably
true. If however the
probabilities are evenly balanced in the sense that they do not
favour the plaintiff’s case any more
than they do the
defendant, the plaintiff can only succeed if the court nevertheless
believes him and is satisfied that his evidence
is true and that the
defendant’s version is false.’
[34]
Jagers
supra,
quoted
in para 45 of the judgment.
[35]
Being the
document
appearing at
p.43 of the plaintiff’s bundle, i.e., the Notice of rights in
terms of the Constitution and the document appearing
at pp. 44 to 47
of the plaintiff’s bundle, i.e., the Warning statement of the
arrestee.
[36]
That an incorrect identity number had been supplied by the plaintiff
to Segodi, is not so far-fetched as at first blush may appear
–
the plaintiff’s counsel suggested to Segodi during
cross-examination that accused persons sometimes provide incorrect
identity numbers to police officers so that they remain unaware of
the persons previous
[37]
Inconsistencies were
inter
alia
pointed out in fns 17
& 18 above.
[38]
For example, he admitted that he did not, prior to placing the
docket at court, attempt to verify the identity number appearing
at
page 52 of the defendant’s bundle, being page 7 of the profile
document obtained in respect of the plaintiff (which,
as was common
cause, was not the plaintiff’s identity number but that which
belonged to another person bearing the same
name as the plaintiff
but having a different date of birth to that of the plaintiff).
[39]
No evidence was presented at the trial that demonstrated that Segodi
had either the means or the opportunity to verify the information
appearing in the profile document before he went to court. On the
contrary, Segodi testified that he did not have the means at
that
stage, to verify the information. This evidence was not gainsayed by
any evidence pointing to the contrary. The evidence
of Ms. Heunis
was to the effect that the information was verified by means of the
SAP69 obtained in respect of the plaintiff,
which was secured by
means of the plaintiff’s fingerprints and not by means of any
information supplied by the plaintiff.
[4
0]
Section
40(1)(a) and (q) of the CPA,1977 provides:
“
(1)
A peace officer may without a warrant arrest any person-
(b)
whom he reasonably suspects of having committed an offence referred
to in Schedule 1, other than the offence of escaping from
lawful
custody;
(q)
who is reasonably suspected of having committed an act of domestic
violence as contemplated in
section 1
of the
Domestic Violence Act,
1998
, which constitutes an offence in respect of which violence is
an element.”
[41]
‘
A
ssault,
when a dangerous wound is inflicted’
is one of the offences listed in schedule 1.
[42]
See:
Duncan
v Minister of Law and Order
1986(2)
SA 805 (A) at 818g-h;
Minister
of Safety and Security v Sekhoto
2011 (1)
SACR 315
(SCA) at [6] and [28].
[43]
In
Sekhoto
supra,
at
para 39, harms DP said that peace officers are ‘
entitled
to exercise their discretion as they see fit, provided that they
stay within the bounds of rationality. The standard
is not breached
because an officer exercises the discretion in a manner other than
that deemed optimal by the court. A number
of choices may be open to
him, all of which fall within the range of rationality. The standard
is not perfection or even the
optimum, judged from the vantage of
hindsight – so long as the discretion is exercised within this
range, the standard
is not breached
.’
[44]
De Klerk v
Minister of Police
2008(2)
SACR 28 (SCA at para [9].
[45]
1952
(1) SA 327
(EDLD).
[46]
See
Mnero
v Min of Police
(647/2013)
[2016] ZAECBHC 15 (14 June 2016) for a more detailed discussion on
the subject.
[47]
The
definition of ‘domestic relationship in terms of s1
the Domestic Violence act, for purposes of the present case, is as
follows::
“ ‘
domestic relationship’
means a relationship between a complainant and a respondent in any
of the following ways:
(a)…
(b)…
(c) they are the parents of a child
or are persons who have or had parental responsibility for that
child (whether or not at the
same time);
(d)…
(e) they are or were in in an
engagement, dating or customary relationship, including an actual or
perceived romantic, intimate
or sexual relationship of any duration;
(f) they share or recently shared the
same residence.”
[48]
The Oxford Concise English Dictionary.
[49]
There the court held as follows:
“
"[24]
One must bear in mind that the requirements of S 40 (1) (q) is not
just
a
suspicion
that an act of domestic violence as contemplated in
S
1
of
the
Domestic
Violence Act has
been
committed, but that the act of domestic violence must constitute an
offence in respect of which violence is an element. The
violence
referred to in the subsection must be physical violence. If a
suspicion that merely an act of domestic violence as contemplated
in
S
1
of
the
Domestic
Violence Act
has
been
committed was sufficient, there would be no need for the
qualification that the act must constitute an offence of which
violence is an element. Bearing in mind that the purpose of arrest
is to bring the arrested person before
a
court,
there must be a suspicion that a legally recognised criminal offence
has been committed"
[50]
The trial
court had found that the police had not acted lawfully in terms of
s3
of the
Domestic Violence Act, seeing
as the section envisaged
that the arrest without warrant ‘may only occur at the scene
of the incident and not sometime
thereafter.’
Section
3
of the domestic violence Act provides that a peace officer may, at
the scene of an incident of domestic violence, without warrant
‘arrest any respondent’ (defined as a person who is in a
domestic relationship with a complainant and who has committed
or
allegedly committed an act of domestic violence against the
complainant) ‘whom he or she reasonably suspects of having
committed an offence containing an element of violence against a
complainant.’
[51]
Botha
v Lues
1983
(4) SA 496
(A)
at 503D;
Duncan
v Minister of Law & Order
supra
at
814 D – E.
[52]
Mabona
supra
at
658E. At 658G-H,-the court went on to say that:
“
The
reasonable man will therefore analyse and assess the quality of the
information at his disposal critically, and he will not
accept it
lightly or without checking it where it can be checked. It is only
after an examination of this kind that he will allow
himself to
entertain a suspicion which will justify an arrest. This is not to
say that the information at his disposal must be
of sufficiently
high quality and cogency to engender in him a conviction that
the suspect is in fact guilty. The section
requires suspicion but
not certainty. However
,
the
suspicion must be based upon solid grounds. Otherwise, it will be
flighty or arbitrary, and not a reasonable suspicion
.”
[53]
As per the entry made in the investigating diary of the docket by
Constable Mokoeng on 9/8/2014, who stated that he had interviewed
the complainant at the crime scene and had attended at the
plaintiff’s residence but ‘he was not there.’
[54]
Quoted in fn 46 above.
[55]
The
complainant had referred to the plaintiff as her boyfriend (in her
A1 statement) whilst the plaintiff had referred to the
complainant
as his girlfriend in his warning statement.
[56]
Naidoo v Minister of Police
(20431/2014)
[2015] ZASCA
152
(2 October 2015)
[57]
2014 (1) SACR 217
(SCA) at paras [12] & [34].
[58]
This requirement entails an honest belief, founded on reasonable
grounds, that the institution of proceedings was justified (at
para
[20]).
[59]
This requirement entails that it would have to be proven that a
defendant was not only aware of what he or she was doing in
instituting or initiating a prosecution, but must at least have
foreseen the possibility that he or she was acting wrongfully,
but
continued, reckless as to the consequences. Negligence, even gross
negligence would not suffice. (at para[64])